Ciira v Republic

Procedure Code; and that the death sentence imposed upon him is excessive, unreasonable, and constitutes cruel, inhumane punishment. 5. Learned counsel Mr. Sigoma appeared for the Appellant. He condensed the appeal into three issues: whether the oence was proved beyond reasonable doubt; whether the conviction was based on insucient evidence; and whether the death sentence is excessive, cruel, and unconstitutional. Submitting on the rst two issues, counsel argued that the prosecution failed to prove that the Appellant personally stole from PW1 Julius Obanda Arani, that he was not personally armed, and that he did not personally use violence against the complainant. Counsel advanced a distinction, contending that mere presence in the company of armed co- accused, without proof that the Appellant had the common intention to commit the robbery, was insucient to sustain a conviction under Section 296(2). On sentence, counsel relied heavily on Edward Kipkemoi Saina v Republic [2024] KECA 809, a murder case where this Court reduced a death sentence to thirty (30) years imprisonment. Counsel submitted that much as murder is a more serious oence than robbery with violence, if the Court found the death sentence harsh in a murder context, it ought to nd it equally excessive and unconstitutional in this instance. 6. Learned counsel Ms. Vitsengwa appeared for the Respondent and strongly opposed the appeal. She submitted that this being a second appeal, our jurisdiction is strictly limited to matters of law, citing Njoroge v Republic (1982) KLR 388. She submitted that under Section 296(2) of the Penal Code, as interpreted by this Court in Oluoch v Republic (1985) KLR and Dima Denge Dima & Others v Republic [2013] KECA 480, the prosecution is not required to prove all three limbs of the oence; proof of any one limb suces. On identication, she submitted that PW1, PW2, and PW4 clearly identied the Appellant inside the matatu and subsequently at Gatundu Hospital. She emphasized that it deed logic for the Appellant to claim he was rescued from a separate motorbike accident by the same Good Samaritan who rescued the robbers from the crashed matatu and was taken to the exact same hospital on the exact same night. On the issue of sentence, she relied on the Supreme Court's directive in Francis Karioko Muruatetu & Another v Republic (2021) eKLR (Muruatetu 2), which expressly limits the application of the Muruatetu 1 guidelines to murder under Sections 203 and 204 of the Penal Code only. She urged us to dismiss the appeal and uphold the death sentence, both as a punishment and a deterrence. 7. This being a second appeal, by dint of Section 361(1)(a) of the Criminal Procedure Code (CPC), our jurisdiction is conned to matters of law. We cannot interfere with concurrent ndings of fact by the two courts below unless they are shown to be based on no evidence, or to have been reached as a result of a misapprehension of the law. See Mwangi v Republic [1983] KLR 522. 8. We have carefully considered the record, the written submissions, and the oral highlights by counsel. In our view, the following issues fall for determination: 9. a. whether the conviction for robbery with violence was anchored on sound legal principles regarding the ingredients of the oence and the doctrine of common intention; and b. whether this Court has the jurisdiction to interfere with the mandatory death sentence imposed under Section 296(2) of the Penal Code. Section 295 of the Penal Code denes robbery, while Section 296(2) prescribes the death penalty if the oender is armed with a dangerous or oensive weapon, or is in the company of one or more other persons, or wounds, beats, strikes, or uses any other personal violence to any person. During the hearing, we asked Mr. Sigoma whether he had any authority for the proposition that an accomplice must personally commit each act of the robbery, stealing, armed, and violence for the charge to stand, even if they were acting in the company of others. He frankly conceded he had none. He also correctly https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1726/eng@2026-09-25 2

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conceded the legal position that being in the company of others elevates simple robbery to robbery with violence under Section 296(2). We associate ourselves entirely with the holding in Dima Denge Dima & Others v Republic (supra), that the elements of robbery with violence are disjunctive and not conjunctive, where this Court stated: “ The use of the word “or” means that the prosecution only needs to prove one of the three elements... It is therefore erroneous for a court to direct itself that all the three ingredients must be proved to secure a conviction." 10. The evidence on record rmly established that the matatu registration number KBF 584 D was carjacked by a gang of about ve (5) men. PW1 testied that when the commotion started, the Appellant stood up from the 2nd last row and ordered the passengers to remain in their seats and keep quiet. The Appellant was positively identied by PW1, PW2, and PW4 at the Gatundu District Hospital casualty area barely thirty minutes after the robbery. The Appellant’s defence that he suered a separate accident by falling into a valley on a motorbike only to be picked up by the same Good Samaritan who rescued the robbers from the crashed matatu and taken to the exact same hospital on the exact same night was rightly dismissed by the trial court as an afterthought and a stretch of credibility. 11. Regarding common intention, under Section 21 of the Penal Code, when two or more persons form a common intention to prosecute an unlawful purpose, each is liable for acts done in furtherance of that purpose. The Appellant was part of the gang that took control of the matatu, ordered passengers to surrender their valuables, and supervised the violent robbery. The fact that the actual physical assault on PW1 may have been meted out by the 1st Accused is immaterial. The common intention to rob with violence was clear. The two courts below cannot be faulted for nding that the prosecution proved, beyond reasonable doubt, that the Appellant was in the company of others during the robbery. On the issue of identication, the robbery occurred at 7.30 p.m. As testied by the eyewitnesses, PW1 and PW4, who were inside the vehicle, the matatu had interior lights that were only smashed after the attack commenced. The passengers had travelled together for a considerable distance from Nairobi, giving them ample time to observe their assailants before the lights were destroyed. The subsequent identication at the hospital was prompt. The rst appellate court correctly found that the conditions were favorable for positive identication and that no error was possible. We see no misdirection of law in this nding. 12. We also note the concern raised during the hearing regarding the particularization of a gun in the charge sheet when no evidence of a rearm was adduced. As correctly submitted by Ms. Vitsengwa, this did not prejudice the Appellant, as the courts below rightly did not base the conviction on the existence of a gun, but rather on the proved elements of being in the company of others and the use of actual violence. 13. Counsel for the Appellant invited us to nd the death sentence excessive and to reduce it, relying heavily on the Saina case(supra), a murder case, and the principles of proportionality. During the hearing, we pointed out to counsel the decision of the Supreme Court in Francis Karioko Muruatetu & Another v Republic (2021) KE-SC 2 (Follow-up), commonly referred to as Muruatetu 2. In that decision, the Supreme Court expressly limited the scope of its earlier Muruatetu 1 decision, holding at Paragraph 18(i) that: “ The decision of Muruatetu and these guidelines apply only in respect to sentences of murder under Sections 203 and 204 of the Penal Code." https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1726/eng@2026-09-25 3

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14. It therefore does not apply to other oences, including robbery with violence under Section 296(2). When we asked Mr. Sigoma whether he conceded that this Court is bound by the Supreme Court's decision, he honestly conceded that we are. 15. Furthermore, even if we were inclined to entertain arguments on the severity of the sentence, Section 361 of the CPC limits our jurisdiction in a second appeal strictly to matters of law. The severity of a sentence is a question of fact. At the time the Appellant was sentenced, the law provided for a mandatory death sentence upon conviction for robbery with violence. The trial court had no discretion to impose a lesser sentence. We entirely agree with the Respondent's submission that the victims were severely traumatized, and the death sentence serves as both punishment and deterrence. In the premises, the challenge to the sentence lacks both legal merit and a jurisdictional basis. 16. For the reasons outlined above, we nd that the two courts below properly evaluated the evidence and correctly applied the law. The concurrent ndings of fact regarding identication, the incredible defence of the Appellant, and the presence of the Appellant in the company of others during the violent robbery were not shown to be perverse. The ingredients of robbery with violence were proved beyond a reasonable doubt. 17. Accordingly, we nd no merit in this appeal. It is hereby dismissed in its entirety. The conviction of the Appellant for robbery with violence is upheld, and the sentence of death imposed by the Trial Court and armed by the High Court is left intact. 18. Orders accordingly. DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER, 2026. P. O. KIAGE JUDGE OF APPEAL ................................... R. NGETICH JUDGE OF APPEAL ................................... RADIDO S. OKIYO JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1726/eng@2026-09-25 4

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